1418037 (Refugee)

[2016] AATA 3304

1418037 (Refugee) [2016] AATA 3304 (10 February 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418037

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Stuart Webb

DATE:10 February 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 10 February 2016 at 3:10pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Malaysia, applied for the visa [in] November 2013 and the delegate refused to grant the visa [in] October 2014.

3. The applicant appeared before the Tribunal on 2 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from [Witness A], a friend of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

4. The applicant was represented in relation to the review by his registered migration agent, however the agent did not attend the hearing. The applicant provided the Tribunal with a copy of the delegate’s decision.

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The applicant made the following claims in his application. He lived in a restricted atmosphere in Malaysia that prevented him from expressing his sexuality as a gay man. He kept his sexuality hidden and did not disclose it to family or friends. There were concerns as the applicant was in his 40s and he remained unmarried. The applicant claimed that suspicions grew and he was once asked whether he was gay, because he was not looking for a wife. The applicant fears that if his sexual preference and identity was discovered he would be outcast from his family, humiliated in his community and ridiculed. If he is discovered in a relationship with another man he will be imprisoned and suffer indignity and abuse in prison. He could be harmed by family, the community or society because of being a gay man. The police won’t protect him/ homosexuality is socially tabooed and outlawed. This reflects the majority social view opposed to homosexuality.

21. The applicant provided a copy of his Malaysian passport to the Department. In his application he stated that the passport was issued in [2011]. He stated he had not been issued with a travel document or passport previously[1]. He later stated that he had renewed his passport a few times and each time he did not keep his old passport. The delegate noted that the applicant had held three Malaysian passports. A page of his current passport  as provided by the applicant indicated a previous travel document had been issued[2]. The applicant stated he had travelled only to [Country 1] in the past.[3]

    [1] DIBP Folio 20, 866C Q31

    [2] DIBP Folio p 67

    [3] DIBP Folio 19, 866C Q34

22. The applicant provided a statement and photo from [Witness A] that stated he was in an intimate relationship with the applicant. He provided a response to questions from the Department regarding a failed partnership visa application with a [Country 2] national in 2011.

23. The applicant was interviewed by the Department. The Department noted the applicant’s migration history. He first arrived in Australia in April 2003. He departed Australia for Malaysia in September 2003. He was refused clearance to enter [Country 2] in September 2009 and returned to Malaysia [days] later. He was refused a further entry clearance to [Country 2] from abroad in May 2011. He arrived in Australia [in] November 2011. He lodged a student visa application in February 2012. His application for a student visa was refused in April 2012. He remained in Australia. The applicant lodged his current protection visa [in] November 2013. The delegate noted that the applicant did not declare any overseas travel apart from [Country 1]. The applicant eventually disclosed that he travelled to a number of destinations including Europe and the [Country 2] previously. The delegate noted that [in] 2011 the applicant applied for a [Country 2] visa in Kuala Lumpur or to enable him to have a civil partnership with a [Country 2] citizen. [In] May 2011 the applicant was refused entry clearance to enter [Country 2] from abroad. The applicant stated his former partner might have lodged the application and his former partner may have withdrawn the visa application.

24. The applicant provided further information at the interview. He provided further information concerning his previous travel history. He stated that at the age of [age] he recognised he was attracted to men. He claimed to have had two sexual relationships. The first relationship was with a [Country 2] man whom he met at a wedding in 2010 while he was in [Country 2]. The second relationship was again with a [Country 2] man. The applicant could not recall his former partner’s name at the interview. In post interview information the applicant said his former partner’s name was [Mr A].

25. He left Malaysia because his mother and grandfather passed away in 2011. He wanted to start a new life. He fears being arrested and charged for having a same-sex relationship. He has not experienced past harm while residing in Malaysia. He has not received any threats or been demeaned in the past while residing in Malaysia. He has not been arrested and detained tortured and/or mistreated.

26. The delegate noted that the applicant was evasive and untruthful regarding his travel history. The delegate denied applicant stated he had resided in the [Country 2] for approximately [number] months in 2010. He had not sought asylum in [Country 2] or Europe.

27. The applicant stated that he had not expressed his homosexuality nor explored the gay scene in Kuala Lumpur or in Malaysia generally. He was discreet because he did not want people to know he was gay. He had two short-term relationships. The applicant eventually stated that he was in a relationship with an Australian citizen. The applicant had very little information about the LGBT community in Malaysia or Australia. The delegate noted that the applicant did not answer a question about how he expressed his homosexuality. The delegate noted that the applicant had not demonstrated any interest in joining groups or associations within the gay community. The applicant had resided in Australia since 2011 when he could openly pursue a gay lifestyle if he so chose. The applicant did not do so.

28. The delegate considered that there were concerns about the applicant’s evidence as to his sexual identity but was prepared to extend the benefit of the doubt to the applicant regarding his claims as to his sexual identity.

29. The delegate noted that the applicant had never had any difficulties with his family. The applicant had not had any difficulty in departing Malaysia, which indicated that the applicant was of no interest to the authorities. The applicant lived a normal life in Malaysia and has not been denied access to services education or employment.

30. The delegate noted that the applicant became aware of his sexual identity at the age of [age]. He first came to Australia in 2003 when he was [age] years old. He has also travelled to [Country 1], Europe and [Country 2]. His experience raised doubts as to the immediacy and gravity of the claimed fear in Malaysia.

31. The delegate was concerned by the delay in lodging a protection visa in Australia. The delegate noted that the applicant had previously been in Australia in 2003 and in Europe and [Country 2] where he had the opportunity to seek protection but did not do so. He did not seek protection in Australia until November 2013, almost 2 years after his most recent arrival. The delegate was concerned by the applicant’s delay in lodging his application.

32. The delegate considered country information regarding sexuality in Malaysia. The delegate noted that there is no law against homosexuality or homosexual acts in Malaysia according to Malaysia’s Penal Code. However sections 377A and 377B exist which criminalise certain acts including sodomy and carnal intercourse against the order of nature. The US Department of State reported that such laws were enforced sporadically. The delegate noted that homosexuality continues to be unacceptable in Malaysia as being against a religious and cultural taboo. Increased Islamic conservatism had gown in the community and homosexuality has been degraded by politicians and in the media. The delegate noted that there are gay and lesbian support organisations as well as gay friendly venues, mainly in Kuala Lumpur. The delegate noted that section 377 of Malaysia’s penal code has only been used seven times in 70 years and four of these occasions were against Anwar Ibrahim.

33. The delegate noted that the applicant feared harm because of lack of acceptance by society in general and by his family, and that discrimination against homosexuals can and does occur. The delegate noted that the applicant has not been denied the right to subsist or precluded from earning a living whilst residing in Malaysia. The delegate considered that country information showed that Muslim homosexual men faced a greater risk of official and societal harm than other homosexual men, such as the applicant who is a Chinese Buddhist. This was because of the influence of sharia law which applies only to Muslims and not the applicant.

34. The delegate did not accept that homosexuals would be subject to persecution in Malaysia or that the applicant had a well-founded fear of persecution for reasons of his membership of a particular social group namely homosexual men in Malaysia.

35. The applicant’s agent provided a submission to the tribunal. It was stated that the applicant has a solid understanding of how gay people are treated in society in Malaysia. It is a Muslim country with conservative values and laws. People link sexuality to concepts of disease such as HIV. He lived a lonely and isolated existence in Malaysia. He met some men in Australia with whom he had a relationship. He would like to settle down with someone and live an openly gay life. He could never have an open life in Malaysia. He fears that if he has to return to his country he would have to hide his identity again. It was claimed that he would suffer psychologically if he had to hide his sexuality. He fears harm from the community at large in Malaysia. He could not turn to police assistance as homosexuality is against the law. He would certainly face discrimination in the workplace and in society at large. He fears he would face possible violence from members of the community if they were to find out about his sexuality and his experience in Australia and [Country 2]. He may be dishonoured or cut off from the family. He fears he will not be able to obtain gainful and ongoing employment for himself.

36. It was submitted that he did not know anyone in Malaysia who was gay. He was not aware of his opportunities to seek asylum in [Country 2]. He has not discussed his sexuality with non-homosexual colleagues or with family members either here or in Malaysia for fear of ostracism. He fears that if he returns to Malaysia his sexuality would inevitably become known.

37. The submission included reference to legislation in Malaysia. This included laws relating to sharia law not relevant to the applicant. The submission included information on the discrimination based on sexual orientation and gender identity. The submission included information on discriminatory ill treatment and restrictions on freedom of expression. It was submitted that politics was against homosexuals in Malaysia.

38. It was submitted that if the applicant were to return to Malaysia he would be unable to express his sexuality in the manner he is done in Australia. It was submitted that the Tribunal cannot exclude the chance the applicant would face serious harm as a consequence of being homosexual and practising his sexuality throughout Malaysia. It was submitted that Kuala Lumpur appears to be the country’s most gay friendly city. However there were difficulties in that city.

39. It was submitted that if the applicant was to return to Malaysia he would have to behave discreetly in the expression of his sexual orientation for fear of facing reprisal and serious harm from the police, morality police, community and family.

    Findings and reasons

    Country of nationality

1. The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Tribunal. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s country of nationality for the purposes of the Refugees Convention and receiving country for the purposes of the complementary protection assessment.

   Third country protection

2. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

   Credibility

3. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

4. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

5. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

6. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

7. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

8. The Tribunal has some serious concerns regarding elements of the applicant’s evidence and activities. The Tribunal discussed information in the delegate’s decision and in the applicant’s protection application. The Tribunal identified that the applicant had been employed as [an Occupation 1] for an extended period of time[4]. His role involved [noted tasks], which the Tribunal identified as a detail orientated process.

   [4] Qs 39-40, Form 866C DIBP Folio 17

9. The Tribunal noted that in the delegate’s decision was information that the applicant had spent some time abroad, in [Country 2] [and some European countries] in 2010. The applicant had discussed this information with the delegate, who found the applicant had not been truthful about his previous travel.

10. The Tribunal also asked the applicant about his international travels. The applicant stated he had travelled to [Country 2] to attend a wedding for the daughter of his mother’s cousin. The Tribunal asked why the applicant had not mentioned this travel in his application for a protection visa when asked specifically about travel overseas prior to his journey to Australia. The application contains 3 references to travel to [Country 1] in 2011, and no reference to any other travel[5]. The applicant stated he had mentioned it to his previous agent who had assisted preparing his protection application, who had not included this information. The Tribunal found this difficult to accept, that such detail would not be included. The applicant later stated that he was only asked about the past 10 years of travel. The Tribunal noted that the applicant’s explanation was not consistent as the travel was in 2010, less than 10 years ago. The Tribunal further identified an error in the application at q 54, where the applicant stated he had never extended his travel document. As detailed above, and in the delegate’s decision, the applicant has had three Malaysian passport numbers. Again the applicant blamed the agent for this error.

    [5] Q 34, 866C

11. The Tribunal does not accept that the agent was to blame for this mistake. The applicant has been employed for an extended period of time in a detail oriented profession. He professes to speak, read and write English. The Tribunal does not accept that the applicant would not be aware of such information being provided, but that the applicant has deliberately withheld information to hide the fact that he travelled to [Country 2] on this occasion.

12. The Tribunal asked if the applicant had been to [Country 2] on any other occasion. The applicant stated he had not. The Tribunal noted that delegate’s decision included information that the applicant had been denied entry at a [Country 2] airport in 2009. The applicant acknowledged that this was correct.

13. The Tribunal asked if the applicant had ever lodged a visa to remain in [Country 2]. The applicant stated he had not. The Tribunal reminded the applicant about information regarding his application for a defacto visa in 2011. The applicant replied this was true. The applicant provided some further information about his time overseas. He then stayed on in 2010 and did some travelling. He met a man, [Mr B], from a website, whom he had sex with, who then introduced him to [Mr A], whom he did not have sex with, who was the man who supported his application to travel to [Country 2], an application that was not continued. The applicant stated that he paid money to [Mr A] for this visa application. This admission concerns the Tribunal with respect to his honesty in migration dealings.

14. The Tribunal is further concerned with contradictory evidence with respect to the applicant having ongoing relationships with other men. While the Tribunal is prepared to accept that the applicant has had sexual relations with other men, his evidence to the Tribunal is quite different to that which he has previously provided. The Tribunal asked the applicant and [Witness A] whether they were in a relationship. They stated that they were not, they were friends. The statement of [Witness A], completed in May 2014 identifies them as intimate, but just friends. It has not gone beyond that. The Tribunal find that the applicant is not in a relationship with [Witness A].

15. The applicant’s evidence regarding his [Country 2] experience also does not depict the applicant in a relationship. He had sex with a man he met online. He then sought to enter [Country 2] by purchasing a visa through an arrangement with another man, whom he did not have sex with. These circumstances do not demonstrate a relationship. The Tribunal considers that the applicant has sought to embellish his claims with respect to his being in a relationship with another man, the Tribunal does not accept that he has ever been in such a relationship.

16. The Tribunal also identified further concerns arising from the applicant’s migration history in Australia. The applicant arrived in Australia on a [temporary] visa in November 2011. He applied for a student visa in February 2012. He was refused this visa in April 2012. The applicant applied for review of this decision at the MRT, reference [number]. The Tribunal determined that the applicant withdrew this application [in] October 2013.  The Tribunal put the information from the withdrawal application to the applicant pursuant to s424AA. The withdrawal statement signed by the applicant stated:

    My name is [applicant name]. I would like to withdraw my review application because I do believe I’m current not able to study due the series of the incidence happened and blocked from my study intention. I decided to return to my home country to fix my personal affairs before deciding whether I would return to my study plan or not.

17. The Tribunal noted that the applicant had not returned to his country but had applied for the protection visa [in] November 2013.

18. The Tribunal noted that this information indicated that the applicant intended to return to Malaysia to fix family problems. The Tribunal stated it caused significant concern to the Tribunal with respect to the applicant having a fear of harm in returning to Malaysia, even with his sexual identity, given this statement.

19. The applicant stated his then agent (a different agent from his protection application) had drafted the letter and he had signed it, he was not fully aware of the information. The Tribunal again noted that the applicant was involved in a detail orientated profession, and that it found it difficult to accept that the applicant would not be aware of such statements. The Tribunal does not accept that the applicant’s agent drafted this, but finds that this statement was prepared and created by the applicant.

20. The Tribunal further noted the delay in lodging the visa application.  The Tribunal notes that it is also legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347). The Tribunal noted that the applicant had delayed his application for a protection visa for 2 years after he arrived in Australia. The applicant stated he was applying for his student visa. He was also not aware of the protection visa being available. The Tribunal noted that refugee and asylum issues were significant issues in the community, including migrant communities. The Tribunal expressed its concern that the delay in lodging the application again demonstrated the applicant’s lack of subjective fear in relation to returning to Malaysia.

    Claims

21. The applicant claims that he will be harmed because he is a homosexual man from Malaysia, that the authorities, the community generally and his family would cause him to suffer because of his sexual identity. The Tribunal accepts that the applicant’s identification as a homosexual (gay) man in Malaysia provides the Convention nexus as such homosexual men in Malaysia as a particular social group for the purpose of refugee determination.

22. The Tribunal discussed with the applicant his sexual orientation and identity. The applicant claims, and his witness supports, that he is a gay man, who has not publically identified this orientation in Malaysia at all, and has had limited experience as a gay man in [Country 2] and in Australia. The applicant claimed he is slowly being becoming more comfortable with that identification, that he shares this information about his sexual orientation among close friends in Australia.

23. The Tribunal accepts that the applicant is gay as claimed, and that he is a member of a particular social group of ‘homosexual men in Malaysia’. The applicant has not made any other claims for protection.

24. The applicant stated that he had not identified himself at all as a gay man in Malaysia. No-one knew of his sexual identity. He had never had a relationship in Malaysia with another man. He had never been threatened or harmed because of his sexual orientation. He had seen some men holding hands in his home town of [Town 1], but was not aware that there was much of a gay community. It was a small town. The Tribunal noted that it was a city of 150 000 with another 250 000 in the immediate vicinity, so was not small[6]. The applicant stated it was not a big city, and that information about people spread quickly.

    [6] [Deleted.]

25. However the applicant feared he would be harmed. He stated that homosexuality in Malaysia was illegal, that the police arrested same – sex people who were holding hands and took them to prison, homosexuals were beaten, he had seen this. If homosexuals were victims of crimes the police did nothing.   

26. The applicant stated that his friends and family were unaware of his homosexuality. The Tribunal questioned this, given he was a single man who left when he was [age], and who had no history of girlfriends. The Tribunal noted that the applicant was now [an age] year old man. The applicant stated his family would lose face if he came out. The applicant stated that they would not reject him, he would be family, but that it would be hard. The applicant stated that half the city would find out. The applicant stated his age meant that it was more difficult to keep these facts in the closet, after his experience in [Country 2] and Australia he was more comfortable with the information about his sexual identity being out.

27. The Tribunal discussed the applicant’s sexual identity in Australia with the applicant. His witness also provided evidence about this. The applicant stated he had not had a relationship in Australia, though he had sexual relations. He did not frequent gay bars, though he had been to Mardi Gras in Sydney once. He was not involved in any gay organisations. The applicant’s witness, who identified himself as gay, stated it was difficult for middle aged men to involve themselves in group activities as there was little to cater for them. Most venues and events are focused on young people. The applicant stated he was comfortable identifying himself as gay amongst a close group of friends.

28. The Tribunal identified that the applicant described his lifestyle as very private. He was not someone who openly expressed his sexual identity, even in a more liberal minded country like Australia. He had not entered into relationships, which the applicant stated was hard for him to do. The Tribunal noted that the applicant was not a person who expressed his sexual identity, either in Malaysia or Australia, and it was difficult to see him, [an age] year old man, changing that now.  The Tribunal noted that it would be likely on return to Malaysia that he would do the same as in Australia, he would not be prominent, but would associate with a close group of friends who knew of his orientation.

29. The applicant stated that he slowly felt more comfortable with his identity, having lived in Australia for some time, and it would be hard to go back to a small town in Malaysia. He did not feel he would be able to be as open. The applicant stated he did not know any gay men in his town. The Tribunal noted that the applicant had seen men holding hands and the applicant acknowledged that there were some gay men in [Town 1].

30. The applicant stated that he did not fear that he would be bodily harmed, but that he could have some mental damage to himself. He would live under heavy pressure.

31. The Tribunal discussed country information with the applicant. The Tribunal stated, and the applicant agreed, that homosexuality itself was not illegal in Malaysia. The Tribunal noted that the applicant was of ethnic Chinese background and not a Muslim, so country information regarding religious police (also known as the morality police) enforcing Sharia law was not relevant to his circumstances, which the applicant agreed with. The Tribunal noted that sections 377A and 377B of the Penal Code, detailed in the delegate’s decision, caused the insertion of the penis into the mouth or anus of another person to be ‘carnal intercourse against the order of nature’ and faced up to 20 years jail. However, these provisions were not enforced by the authorities, there being 7 recorded instances in the past 70 years and 4 of these specifically against Anwar Ibrahim[7]. It has been described that the use of these provisions are highly political in nature[8] and not used in the ordinary course of matters against individuals. No other provisions of the Penal Code refer to homosexuality, thus being homosexual in itself is not illegal.

    [7] Brownell C 2009, ‘Rethinking Malaysia’s sodomy laws’, The Nut Graph, 24 July <CISE1310071713 Also note  References in DIBP Decision, pp 13-15, AAT Folios 2-3

    [8] DFAT Country Report, Malaysia, December 2014, 3.67; US Department of State 2015, Country Reports on Human Rights Practices 2014 – Malaysia, 25 June, Discrimination, Societal Abuses, and Trafficking in Persons’ subsection ‘Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity ’

32. The Tribunal discussed societal attitudes towards homosexuals. The Tribunal noted that the situation for ethnic Malays was different to other ethnic groups of the Malay community, as stricter provisions of Islam were implemented by Islamic police. However the situation for other ethnic groups was not without challenge. The Tribunal noted that political statements have vilified the homosexual community. The latest DFAT report on Malaysia, released in December 2014, noted that:

    In May 2014, Prime Minister Najib said the Government would “not allow Muslims to engage in LGBTI activities”. In April 2014, Deputy Prime Minister Muhyiddin Yassin said LGBTI rights advocates in Malaysia were “poisoning the minds of Muslims with deviant practices”[9].

    [9] Ibid, 3.68

33. The Tribunal also noted from the DFAT report that:

    3.73 DFAT assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official discrimination on a day-to-day basis in Malaysia. The level and frequency of discrimination faced by the LGBTI community in Malaysia depends on the socio-economic and religious status and geographic location of those involved. Many middle and upper class, educated and urban Malaysians are open about their sexuality within their family and community circles. However, many LGBTI individuals, particularly Muslims, continue to hide their identity to avoid harassment.

34. The Tribunal noted that the applicant had not personally experienced harm in Malaysia because of his sexual orientation. He feared that he may be affected by the difficulties that homosexuals face, including the mental pressure of being gay.

35. A body of evidence exists that shows LGBTI individuals experience varying degrees of tolerance. A May 2012 report on the Gay Star News website refers to the comments of Lee Kam Wye, a retired secondary school teacher in Malaysia, who said that ‘LGBT may appear to be spreading not because more people are being recruited into LGBT lifestyle but because this community is braver and more open now’[10]. A February 2012 Hindustan Times article, sourced from Agence France-Presse, indicates that ‘The gay and lesbian community in socially conservative Malaysia has slowly gained a higher profile in recent years, and transsexuals live openly in cities’. The article also indicates, however that ‘many complain they continue to live in fear of persecution, especially amid a perceived growing Islamisation of the country’[11]. A January 2011 Inter Press Service article refers to the comments of Michael Lam, a gay accountant in Malaysia, who, when discussing the reaction to Azman Ismail, a Muslim, going on YouTube.com and confessing that he was a gay, said that ‘What’s shocking to many Malaysians is not the fact that there are LGBT persons or LGBT behaviour, which is common but never in your face’, it was ‘the open admission of being gay and the defence of homosexuality by a Malay Muslim’. It was ‘the openness that is inviting adverse reaction’. Lam also said that ‘LGBT is generally tolerated, but as long as it is not flaunted.’[12] A website advising homosexuals on travelling around Asia makes the following remarks with respect to the Malaysian gay scene.

    Malaysia will no doubt surprise you. This multi-cultural nation, largely populated by moderate Muslims and fiercely intolerant of being bullied by western powers, is filled with charm, nature, culture, and warm hospitality. Remarkably, it also has a thriving gay scene (perhaps Southeast Asia’s most exciting) which, while still mostly underground, is basically tolerated by the live-and-let-live attitude of its people.

    Yes, the country was once lead by a cranky homophobe, Mahathir Mohamad, who infamously ousted his one-time protégé, Anwar Ibrahim, on trumped-up sodomy charges, despicably wielding antique colonial buggery laws to do so.

    Times change. Homohaters and dictators are relegated to the dust bin these days. Anwar’s groundless conviction was overturned by Malaysia’s high court in 2004. Mahatir’s daughter, Marina, works tirelessly behind the scenes to support AIDS/HIV education, including championing efforts by Malaysian GLBT health worker heroes.

    Malaysia is thriving under the fresh air of tolerance and democracy. Straight-owned venues openly cultivate custom from the gay community, while homosexual entrepreneurs launch trendy businesses and mini-utopias of their own[13].

    [10]Malaysia training helpers to curb homosexuals’ 2012, Gay Star News, 23 March < <CX288268 

    [11] Malaysia transsexuals targeted in attacks: report’ 2012, Hindustan Times, 16 February, source: Agence France-Presse < <CX0D38E8E20065>

    [12] Kuppusamy B 2011, ‘Malaysia: Muslim gay faces govt wrath’, Inter Press Service (IPS), 15 January < <CX256528>

    [13] Travel & Resources: MALAYSIA, General information,  type="1">

    The website provides the following details about gay friendly sites in [Town 1], the applicant’s home city.

    [Deleted.].[14]

    [14] [Deleted.]

    The Tribunal notes that the largest city in Sabah province, Kota Kinabalu has a reasonably significant gay population and a number of gay venues[15], though this is [distance] from [Town 1].

    [15] >

    The Tribunal has considered this information and claims by the applicant. The Tribunal considers that the applicant had demonstrated in his actions that he has not had a fear of harm arising out of his sexual identity in Malaysia. He wrote a letter to the MRT saying he intended to return home to Malaysia, two years after living in Australia with the relative sexual freedoms that exist for gay men. He did not seek protection on arrival in Australia, despite his sexual identity being known to him. He had even pursued a visa for [Country 2] through a de-facto relationship visa application made by another man prior to coming to Australia. The Tribunal considers that the delay in making the application for protection is a relevant consideration in this matter, as is his written statement that he intended to return home to Malaysia. Both provide evidence that the applicant did not fear harm on return to Malaysia because of his sexual identity.

    The Tribunal accepts that the applicant has some trepidation returning to Malaysia, arising out of his coming out of the closet[16], as his agent noted. The Tribunal found him to be a private individual, who has remained private about his sexual identity, in Malaysia, [Country 2] and Australia. The Tribunal considers that his private nature arises out of his personal choices, and does not arise out of any fear of harm. As discussed below, the Tribunal considers that the applicant could have been open about his sexual identity in Malaysia, should he have chosen to do so, without facing a real chance or real risk of harm. The Tribunal considers that the applicant would not have to be discreet in his identity, though his nature would likely lead him, as he has done in Malaysia and Australia, to remain a private individual. The Tribunal notes that he has not had any ongoing relationships with other men, though the Tribunal accepts that he has had a few sexual encounters. The applicant would be returning to his home town with some more ideas about his sexuality, and faces the task of opening up to family and friends regarding his sexual orientation. The Tribunal accepts that coming out to these people, as he has done in a very limited manner in Australia, amongst close friends only, would be difficult. But the Tribunal does not accept that the difficulty of identifying his sexual orientation to family and friends on Malaysia constitutes serious or significant harm.

    [16] Para 5 of 15 December 2015 Submission to the Tribunal, AAT Folio 35

    The Tribunal has considered the evidence regarding the treatment of homosexual men in Malaysia. The Tribunal accepts that there is a degree of social stigma, formed through the conservative Islamist perspectives that affect all of the community, and comments by politicians. The Tribunal accepts the applicant’s contention that those identifying as gay in  Malaysia have more difficulties than in Australia.

    However the Tribunal does not accept that the treatment of homosexual men in Malaysia constitutes serious or significant harm. The Tribunal does not accept that the Malaysian police arrest same sex couples for holding hands, as discussed with the applicant, there are no penal provisions for such activities. There are the provisions relating to unnatural acts, however as discussed above, these are not enforced in Malaysia other than one highly political case. The Tribunal finds that the applicant will not be imprisoned if discovered in a relationship with another man. The Tribunal notes the DFAT information provided above that specifically identifies the issue for Muslim homosexuals, given the activities of the religious police in enforcing Sharia law, something that does not affect the applicant. The country information detailed above provides information about the gay culture that exists in Malaysia. The applicant also claimed that the police were less likely to act on complaints if they knew he was gay. The Tribunal accepts that the police may not be as responsive to the applicant if they knew him to be a homosexual, if he was to report a crime against himself or his property. The Tribunal accepts that this would cause the applicant to have reservations with respect to approaching the police. However the Tribunal considers that the prospect of the applicant having to approach the police because of an attack due to his homosexuality to be remote, given the finding below that the applicant does not have a real chance or real risk of being harmed in such a manner. The Tribunal considers that in all other criminal matters, if the applicant was to report a crime, the applicant would receive the same treatment as any other citizen from the police. The Tribunal considers that the claims of the applicant fearing harm from the authorities are unfounded. The Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm for this reason.

    The applicant claimed he had seen some gay men holding hands being harassed and beaten in the community. However when asked whether he feared this happening to him, the applicant stated he did not fear bodily harm. The Tribunal considers that this is because the applicant is unlikely to be identified as a gay man on the street, given his private nature. The Tribunal has turned its mind to whether the applicant would be harmed if he was identified as a gay man on the street. The Tribunal considers the country information does not demonstrate that there is a significant level of violence against homosexuals in the manner as claimed by the applicant. The Tribunal considers that the chance of the applicant being harmed on the street as a gay man in Malaysia is remote, and not one that could be described as a real chance or real risk of occurring.

    The Tribunal has considered the issue of the community attitude towards homosexuality more generally. The Tribunal accepts that on the whole there is a negative attitude towards homosexuality, as the Islamic community which makes up the majority of Malaysian society does not support homosexuality. Though Sharia Law does not affect non-Muslims, conservative values have meant that some displays of homosexual activities in the general community have been discontinued, such as a pride march in 2008. The applicant’s agent has noted that HIV stigmatises gay men in Malaysia, though the applicant’s knowledge of this issue is that he had only read some information about HIV treatments in his country. The Tribunal does not accept that HIV issues would cause the applicant to face a real chance of serious harm or significant harm in the circumstances, as based on the country information and the applicant’s evidence.

    The Tribunal considers that the information regarding community attitudes and violence towards homosexuals is limited. The Tribunal notes that the country information suggests that it is basically tolerated, that if it is not flaunted most people will not be concerned with such activities. The Tribunal notes that [Town 1] is a very mixed city, with a significant non-Malay citizen population, and a large Chinese population[17]. The Malay population is relatively small. The Tribunal does not consider, in the individual characteristics of the applicant, that he would flaunt his sexuality in public, but that he would remain relatively private about such things, revealing his identity to close friends and family. The Tribunal considers that the applicant would be able to explore his sexuality in his city, including sexual experiences, without being harmed. The Tribunal does not accept that the applicant would be required to live discreetly as a gay man. The Tribunal considers that the applicant would be able to live in [Town 1] as a gay man and not face a real chance of serious harm or a real risk of significant ham.

    [17] [Deleted.]

    The Tribunal considers it plausible that the applicant would come out as gay to family and close friends as he claimed it would mentally harm him if he did not do so. The Tribunal has considered the treatment of the applicant coming out in front of his family and close friends. The Tribunal notes that the applicant stated his family may lose face, but they would not repudiate him. His home would remain with his grandmother, who raised him. He may have a different relationship with his family, who have supported him in the past, his brother had planned to open a restaurant with him, but the Tribunal does not consider that this different relationship constitutes serious or significant harm so defined. The Tribunal finds that given his evidence, the applicant would not be ostracised, disowned or cut off by family and close friends. The Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm from his friends or family after identifying himself as gay.

    The Tribunal notes that the applicant has had an ongoing position in Malaysia for an extended period of time, with practical experience that makes him eminently employable. He resided with his grandmother prior to coming to Australia, which is still available, and the applicant stated he had savings from his work in Malaysia and in Australia. The applicant resides in a location within Malaysia that has a significant non-Muslim population, with ethnic Chinese making up a significant proportion of the city. DFAT states that gay people are able to live and work in the community, the Tribunal considers that the applicant’s home region is a location where he can live and work without harassment, given the multi-ethnic population of the city. The Tribunal considers in the individual circumstances of the applicant, [an age] year old who has a long and successful work history in semi-professional roles in in demand areas of employment would be able to find work in Malaysia, and his sexual orientation, if it became known, would not lead to his being fired or harmed in that employment.

    The Tribunal has considered the claim that he would be discriminated against by society in general, or whether he would be humiliated or ridiculed.in his community. The Tribunal accepts that there are some attitudes against homosexuals in Malaysia. However the Tribunal does not accept that this attitude is such that it means that the applicant would not be able to live in his home community. The Tribunal notes that the country information identifies gay Muslims as have difficulty living in Malaysia, given the religious repudiation of such activity. The applicant is not a Muslim, and therefore does not face the religious based issues for that section of the community. As discussed, the Tribunal does not accept that his being a homosexual will lead to his being denied the opportunity to work and live in his home city. While he may choose not to associate with Muslims who may not approve of his sexual orientation, the Tribunal does not accept that this would lead to discrimination that is serious or significant harm. The Tribunal considers that there will be many within his community who will accept the applicant for who he is, and not be concerned as to his sexual orientation. The Tribunal finds that the applicant will not be discriminated, humiliated or ridiculed against by society in general because he identifies and is a gay man.  

    The Tribunal has considered the applicant’s circumstances. The Tribunal accepts that living as a gay man in Australia is better than living as a gay man in Malaysia. The Tribunal does not accept the contention that the applicant’s actual life will be different, as he certainly has not ‘lived an openly gay life’ in Australia, having come out to only close friends and having very limited interaction with the open gay scene in Australia. The applicant is a private man who has remained private in Australia. The Tribunal considers that his sexuality would be disclosed to people In Malaysia, and that he would seek out gay sexual encounters. The Tribunal considers that he would do this in Malaysia, and live as a gay man in that environment, without a real chance of serious harm or a real risk of significant harm. The Tribunal does not accept that the applicant faces a real chance of serious harm now and in the reasonable foreseeable future, or a real risk of significant harm, because of his sexual identity.

    The Tribunal finds that the applicant does not have a real chance of serious harm for a Convention reason, now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason.

    Further, having considered the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

    Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

    The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Stuart Webb
    Member